Posted
by
timothy
on Monday December 08, 2003 @08:07PM
from the hope-springs-eternal-like-a-slinkie dept.

sunbird writes "At just after 5 o'clock EST, the House concurred to the Senate's amendments to the Controlling the Assault of Non-Solicited Pornography and Marketing Act of 2003 (or "CAN-SPAM") (bill in PDF format: here or here). Although the bill will prohibit certain tactics (such as hiding return addresses), critics state that the bill does not go far enough (see this press release). The bill will provide criminal penalties for violations of its provisions (up to five years behind bars), but will not allow private parties to sue spammers. News reports indicate (SF Gate or Forbes) that Bush intends to sign the bill. Prior Slashdot articles are here: 123."

Despite popular opinion, a US law will only stop domestic spam, and the weaknesses of punishing the actual company hiring the spammer have been made clear before e.g. Hiring someone to spam your competitors product.Why not continue working on more effective spam traps and stop legislating morality.

... being written and passed solely through back-room compromises and with the input of the marketing industry and Internet Service Provider lobbies, but with scant regard for the interests of America's consumers and business Internet users.

First of all, why doesn't THAT surprise me in the least? In other words, "legitimate" marketers, like them or not, get free fun of your inbox the way they do your mailbox. Except, of course, it costs next to nothing to spam people so it will be like them jamming 1000 unwanted credit card apps, catalogs, and other miscellaneous garbage into your mailbox everyday.

Now, some of you might think that "legitimate" businesses won't try to abuse this. For you poor, naive fools, let me tell you that I work in a "legitimate" direct mail company and we junk mail the shit out of people. They ask us to stop? Ok - we stop selling their name and address and then we stop sending them stuff. Of course, if they do business with us again, the whole thing starts over. Yahoo!, in fact, appears to have already caught onto this idea within the realm of spam. Expect to see changes in "privacy policies" to be used more frequently as excuses to override requests not to spam.

In short, expect your spam count to rise. It will just be a little more "honest", as the CAUCE release notes, not a better situation in general. Go Congress. I'm just sooooooo proud of my government at times like this.

I should like to point out that most politicians, including senators, run their own small to large businesses, of all shapes and sizes in some way- keeping their hands far enough away to avoid conflict of interest.

Do you really think that THEIR companies don't spam people?

And of course the usual suspect lobbies don't help much either, considering this is also politics + business.

The President's come under some criticism of late because he hasn't vetoed any bills in this term. Maybe we can give him a reason to change that.

White House contact info is at http://www.whitehouse.gov/contact/ [whitehouse.gov] The most effective communication for this type of this thing is a real phone call and fax.

If you decide to fax a note, the general rules of thumb are to address the issue in the first sentence, to keep it short, be concise with your reasoning, and to note anything that gives you expertise relating to the issue.

It's right in the law, section 8b: "This Act supersedes any stat-ute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages, except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto."

Had you read the bill (which is more than most congresscritters do, but I digress) you would have seen that:

This Act supersedes any statute, regulation, or rule of a State or political subdivision of a State that expressly regulates the use of electronic mail to send commercial messages,

except to the extent that any such statute, regulation, or rule prohibits falsity or deception in any portion of a commercial electronic mail message or information attached thereto.

In other words, laws like Washington's [wa.gov] are affected not in the slightest.

Wake up,/.'ers, the sky isn't falling. True, it isn't the greatest (or even a terribly "good" antispam bill,) but politics is the art of the possible. Nowhere is it more true than in politics that the perfect is the enemy of the good. We'll get a good law eventually.

I believe you are not correct in projecting the effects of this bill. The primary reason that spammers had in falsifying information in their headers was that many states had prohibitions on spam. WA (and MD, etc) put laws on their books prohibiting emails with such falsehoods which nicely side-stepped the problem of being content related. When the WA Supreme Court upheld the WA law, they said "Hey, we're only banning fraudulent emails so that can't possibly interfere with Interstate commerce, it can only encourage it..." Spammers will now just send a WA resident email with no false headers or or deceptive subject lines.

So now they will send spam to you with a subject line of "Hi" about Mini RC Cars and Viagra and you can't do a thing about it under Federal or WA law. California law did prohibit that, but we're hosed. The one thing you might be able to preserve is a private right of action in a state court, but that will be a battle someone has to be willing to finance. The big ISPs won't do it, they'd rather file in the Federal Court down the street from their HQ.

The act does not provide for a private federal law suit based on this particular law. You can still sue under State laws (at least those that are not preempted under Section 8(b)(1)). The act does not supercede other state law claims under laws that are unrelated to regulating email. This means claims founded on common law (trespass or contract claims for example) or another generally-applicable law (for example, a state consumer protection act) will survive this act. See Section 8(b)(2)(A).

Also, three other types of claims may asserted. First, State attorneys general may sue spammers on behalf of state residents. See Section 7(f)(1). Second, ISPs may sue spammers. See Section 7(g)(1). Third, the Federal Trade Commission, and certain other federal agencies, may sue spammers. See Section 7(a)-(b).

It may interest you that the EU has passed a directive requiring opt-in. Several states have implemented this into national law already.

Fines here in Sweden are stiff, up to $500k for infractions.

This law has no silly exceptions for charities, religious institutions, etc. The notable exception to the spam law is if you have a previous business relationship with the sending party; I think such an exception is reasonable -- assuming an implied acceptance of marketing material from existing business partners, if nothing else has been stated. In the same breath, though, let me mention that such an acceptance of marketing e-mail within a business relationship can be expressly revoked at any time, even if previously expressly permitted, also as mandated by the same law.

In Sweden, this law goes into effect on April 1, 2004 (I don't know if there is a hidden meaning in that, but I hope not).

It is also interesting to note that the law is very broad in scope and covers all text-, video-, and image-based communications where the delivery has a store-and-forward model -- it explicitly covers SMS messaging as well, for example.

Now, with this said, I shouldn't hope too much that the US, like you say, "show up the corrupt U.S. idiots". The current administration is not known for its humility and desire to learn from other people and cultures.

(In fact, as a side note, I am amazed at how this administration has managed to turn the mainstream attitude in Europe from "want to be an American too" to "would pick up arms tomorrow against the US if I had the opportunity" in just a few years. It's absolutely unbelievable how arrogant the current president has managed to come himself across to the world; I'm not sure the sheer level of this is realized within the American borders.)

Right now they can spam all they want using forged headers. This bill forces them to use real addresses, real IP addresses, not relay, have operational opt-outs, not forge headers, not keep using different domain names (company name change basically), and lots of other things. It also states it will not override current state laws.

If 'legitimate' businesses don't comply it would be interesting to see some huge company make the news when they max out the $1,000,000 fine & go to jail. That kind of publicity should scare many "legitimate" spammers into submission.

The comment about not being able to sue was inaccurate as well. If damages were incurred you can seek damages from the spammer.

The majority of spam I get right now comes from within the US. If it so much as reduces my daily spam by 20% I'll be thrilled.

That's why it's called the "CAN-SPAM" act. No trickery with naming there, nosir.

This surprises you? If you only need to know one thing about our current government, it's that bills' names and their purposes are directly opposite each other. Hence the "Clear Skies Act," which rolls weakens air quality regulations, the "Healthy Forests Restoration Act," which increases logging in national forests, etc.